-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, GTuX46R15kkUv0mPwmkVUGT7RczwhvvFE5Cl4y2IP5XdJsJfRpR3ehY9Op2hXzr3 e5jjuA+otKCym5FP7fU60Q== 0000912057-01-518351.txt : 20010604 0000912057-01-518351.hdr.sgml : 20010604 ACCESSION NUMBER: 0000912057-01-518351 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20010601 EFFECTIVENESS DATE: 20010601 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SERENA SOFTWARE INC CENTRAL INDEX KEY: 0001073967 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 942669809 STATE OF INCORPORATION: DE FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-62106 FILM NUMBER: 1652686 BUSINESS ADDRESS: STREET 1: 500 AIRPORT BLVD 2ND FLOOR CITY: BURLINGTON STATE: CA ZIP: 54010 BUSINESS PHONE: 6506961800 S-8 1 a2050939zs-8.txt S-8 As filed with the Securities and Exchange Commission on June 1, 2001. Registration No. 333-__________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------------------ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------ SERENA SOFTWARE, INC. (Exact name of registrant as specified in its charter) DELAWARE 94-2669809 (State or other jurisdiction of (I.R.S. Employer Identification No.) incorporation or organization) 500 AIRPORT BOULEVARD, 2ND FLOOR BURLINGAME, CALIFORNIA 94010-1904 (Address, including Zip Code, of Principal Executive Offices) 1999 EMPLOYEE STOCK PURCHASE PLAN (Full title of the plan) MARK E. WOODWARD SERENA SOFTWARE, INC. PRESIDENT AND CHIEF EXECUTIVE OFFICER 500 AIRPORT BOULEVARD, 2ND FLOOR BURLINGAME, CALIFORNIA 94010-1904 (650) 696-1800 (Name, address, and telephone number, including area code, of agent for service) WITH A COPY TO: Corinna M. Wong, Esq. Baker & McKenzie 660 Hansen Way Palo Alto, California 94304 (650) 856-2400 ------------------------ CALCULATION OF REGISTRATION FEE
================================================ ============ =================== =================== ============== AMOUNT TO PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF TITLE OF SECURITIES TO BE BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION REGISTERED (1) REGISTERED PER SHARE(2) PRICE (2) FEE - ------------------------------------------------ ------------ ------------------- ------------------- -------------- Common Stock, $0.001 par value - ------------------------------------------------ ------------ ------------------- ------------------- -------------- to be issued under the Amended and 1,927,500 $25.975 $50,066,813 $12,516.70 Restated 1997 Stock Option and Incentive Plan Shares - ------------------------------------------------ ------------ ------------------- ------------------- -------------- to be issued under the 1999 Employee 575,000 $25.975 $14,935,625 $3,733.91 Stock Purchase Program Shares - ------------------------------------------------ ------------ ------------------- ------------------- -------------- to be issued under the 1999 Director 60,000 $25.975 $1,558,500 $389.63 Option Plan Shares - ------------------------------------------------ ------------ ------------------- ------------------- -------------- TOTAL 2,562,500 $66,560,938 $16,640.24 Shares ================================================ ============ =================== =================== ==============
(1) Shares of common stock of Serena Software, Inc. (the "Company"), $0.001 par value per share (the "Common Stock"), being registered hereby relate to the Serena Software, Inc. Amended and Restated 1997 Stock Option and Incentive Plan, 1999 Employee Stock Purchase Plan and the 1999 Director Stock Option Plan (collectively, the "Plans"). Pursuant to Rule 416 promulgated under the Securities Act of 1933, as amended (the "Securities Act"), there are also being registered such additional shares of Common Stock as may become issuable pursuant to the anti-dilution provisions of the Plans. (2) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and (h) promulgated under the Securities Act on the basis of the average of the high and low sale prices of the Common Stock on May 30, 2001, as reported on the Nasdaq National Market System. ================================================================================ PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The documents listed in (a) through (b) below are hereby incorporated by reference into this Registration Statement. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a post-effective amendment to the Registration Statement which indicates that all shares of Common Stock offered hereunder have been sold or which deregisters all shares then remaining unsold, shall be deemed to be incorporated herein by reference and to be a part hereof from the date of filing of such documents. (a) The Company's Annual Report on Form 10-K for the fiscal year ended January 31, 2001, filed on April 30, 2001; (b) The Company's description of its common stock, which is contained in its registration statement on Form 8-A, filed pursuant to Section 12(g) the Exchange Act on January 22, 1999, including any amendments or reports filed for the purpose of updating such descriptions. ITEM 4. DESCRIPTION OF SECURITIES Not Applicable. ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL None. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS Section 145 of the Delaware General Corporation Law permits a corporation to include in its charter documents, and in agreements between the corporation and its directors and officers, provisions expanding the scope of indemnification beyond that specifically provided by the current law. Article IX of our Amended and Restated Certificate of Incorporation provides for the indemnification of directors to the fullest extent permissible under Delaware Law. Article VI of our Bylaws provides for the indemnification of officers, directors and third parties acting on behalf of the Company if such person acted in good faith and in a manner reasonably believed to be in and not opposed to the best interest of the Company, and, with respect to any criminal action or proceeding, the indemnified party had no reason to believe his conduct was unlawful. We have entered into indemnification agreements with our directors and executive officers, in addition to the indemnification provided for in our Bylaws, and intend to enter into indemnification agreements with any new directors and executive officers in the future. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. None. 2 ITEM 8. EXHIBITS. The following are filed as exhibits to this Registration Statement:
EXHIBIT NO. DESCRIPTION - ----------- ----------- 4.1 Amended and Restated Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to the Company's Registration Statement on Form S-1/A filed with the Securities and Exchange Commission on January 25, 1999 (Registration No. 333-67761)). 4.2 Bylaws of the Company (incorporated by reference to Exhibit 3.2B to the Company's Registration Statement on Form S-1 filed with the Securities and Exchange Commission on November 23, 1998 (Registration No. 333-67761)). 4.3 Amended and Restated 1999 Stock Option and Incentive Plan (incorporated by reference to Exhibit 10.2A to the Company's Registration Statement on Form S-1 filed with the Securities and Exchange Commission on November 23, 1998 (Registration No. 333-67761)). 4.4 Form of Option Agreement under the Amended and Restated 1999 Stock Option and Incentive Plan (incorporated by reference to Exhibit 10.2B to the Company's Registration Statement on Form S-1 filed with the Securities and Exchange Commission on November 23, 1998 (Registration No. 333-67761)). 4.5 Form of Restricted Stock Purchase Agreement under the Amended and Restated 1999 Stock Option and Incentive Plan (incorporated by reference to Exhibit 10.2C to the Company's Registration Statement on Form S-1 filed with the Securities and Exchange Commission on November 23, 1998 (Registration No. 333-67761)). 4.6 1999 Employee Stock Purchase Plan (incorporated by reference to Exhibit 10.3A to the Company's Registration Statement on Form S-1 filed with the Securities and Exchange Commission on November 23, 1998 (Registration No. 333-67761)). 4.7 Form of Subscription Agreement under the 1999 Employee Stock Purchase Plan (incorporated by reference to Exhibit 10.3B to the Company's Registration Statement on Form S-1 filed with the Securities and Exchange Commission on November 23, 1998 (Registration No. 333-67761)). 4.8 1999 Director Option Plan (incorporated by reference to Exhibit 10.4A to the Company's Registration Statement on Form S-1 filed with the Securities and Exchange Commission on November 23, 1998 (Registration No. 333-67761)). 4.9 Form of Option Agreement under the 1999 Director Option Plan (incorporated by reference to Exhibit 10.4B to the Company's Registration Statement on Form S-1 filed with the Securities and Exchange Commission on November 23, 1998 (Registration No. 333-67761)). 5.1* Opinion of Baker & McKenzie as to legality of securities being registered. 23.1* Consent of Baker & McKenzie (contained in Exhibit 5.1). 23.2* Consent of KPMG LLP. 24.1* Power of Attorney (included on the signature page of the Registration Statement).
- ---------------- * filed herewith ITEM 9. UNDERTAKINGS. (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective Registration Statement; 3 (iii) To include any material information with respect to the Plan of Distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the Registration Statement is on Form S-3, Form S-8, or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. 4 SIGNATURES Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Burlingame, California, on June 1, 2001. SERENA SOFTWARE, INC. By: /s/ MARK E. WOODWARD ----------------------------------------------- Mark E. Woodward President, Chief Executive Officer and Director 5 POWER OF ATTORNEY Each person whose signature appears below hereby authorizes Mark E. Woodward to file one or more amendments (including post-effective amendments) to this Registration Statement, which amendments may make such changes in this Registration Statement as each of them deems appropriate, and each such person hereby appoints Mark E. Woodward as attorney-in-fact to execute in the name and on behalf of the Company and any such person, individually and in each capacity stated below, any such amendments to this Registration Statement. Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.
SIGNATURE TITLE DATE --------- ----- ---- /s/ MARK E. WOODWARD President, Chief Executive Officer June 1, 2001 - ------------------------------------- and Director (Principal Executive MARK E. WOODWARD Officer) /s/ ROBERT I. PENDER, JR. Vice President, Finance and June 1, 2001 - ------------------------------------- Administration, Chief Financial ROBERT I. PENDER, JR Officer and Director (Principal Financial and Accounting Officer) /s/ DOUGLAS D. TROXEL Chairman of the Board of Directors June 1, 2001 - ------------------------------------- and Chief Technology Officer DOUGLAS D. TROXEL /s/ ALAN H. HUNT Director June 1, 2001 - ------------------------------------- ALAN H. HUNT /s/ JERRY T. UNGERMAN Director June 1, 2001 - ------------------------------------- JERRY T. UNGERMAN /s/ RICHARD A. DOERR Director June 1, 2001 - ------------------------------------- RICHARD A. DOERR
6 EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION - ----------- ----------- 4.1 Amended and Restated Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to the Company's Registration Statement on Form S-1/A filed with the Securities and Exchange Commission on January 25, 1999 (Registration No. 333-67761)). 4.2 Bylaws of the Company (incorporated by reference to Exhibit 3.2B to the Company's Registration Statement on Form S-1 filed with the Securities and Exchange Commission on November 23, 1998 (Registration No. 333-67761)). 4.3 Amended and Restated 1999 Stock Option and Incentive Plan (incorporated by reference to Exhibit 10.2A to the Company's Registration Statement on Form S-1 filed with the Securities and Exchange Commission on November 23, 1998 (Registration No. 333-67761)). 4.4 Form of Option Agreement under the Amended and Restated 1999 Stock Option and Incentive Plan (incorporated by reference to Exhibit 10.2B to the Company's Registration Statement on Form S-1 filed with the Securities and Exchange Commission on November 23, 1998 (Registration No. 333-67761)). 4.5 Form of Restricted Stock Purchase Agreement under the Amended and Restated 1999 Stock Option and Incentive Plan (incorporated by reference to Exhibit 10.2C to the Company's Registration Statement on Form S-1 filed with the Securities and Exchange Commission on November 23, 1998 (Registration No. 333-67761)). 4.6 1999 Employee Stock Purchase Plan (incorporated by reference to Exhibit 10.3A to the Company's Registration Statement on Form S-1 filed with the Securities and Exchange Commission on November 23, 1998 (Registration No. 333-67761)). 4.7 Form of Subscription Agreement under the 1999 Employee Stock Purchase Plan (incorporated by reference to Exhibit 10.3B to the Company's Registration Statement on Form S-1 filed with the Securities and Exchange Commission on November 23, 1998 (Registration No. 333-67761)). 4.8 1999 Director Option Plan (incorporated by reference to Exhibit 10.4A to the Company's Registration Statement on Form S-1 filed with the Securities and Exchange Commission on November 23, 1998 (Registration No. 333-67761)). 4.9 Form of Option Agreement under the 1999 Director Option Plan (incorporated by reference to Exhibit 10.4B to the Company's Registration Statement on Form S-1 filed with the Securities and Exchange Commission on November 23, 1998 (Registration No. 333-67761)). 5.1* Opinion of Baker & McKenzie as to legality of securities being registered. 23.1* Consent of Baker & McKenzie (contained in Exhibit 5.1). 23.2* Consent of KPMG LLP. 24.1* Power of Attorney (included on the signature page of the Registration Statement).
- ---------------- * filed herewith 7 EX-5.1 2 a2050939zex-5_1.txt EXHIBIT 5.1 Exhibit 5.1 [Letterhead of Baker & McKenzie] June 1, 2001 Serena Software, Inc. 500 Airport Boulevard, 2nd Floor Burlingame, California 94010-1904 Re: Serena Software, Inc. Registration of Common Stock Dear Sirs: Serena Software, Inc., a Delaware corporation (the "Company"), intends to file with the Securities and Exchange Commission (the "Commission") a Registration Statement (the "Registration Statement") on Form S-8 under the Securities Act of 1933, as amended (the "Act"). The Registration Statement covers a total of 2,562,500 shares of the Company's common stock, $.001 par value per share (the "Shares"), of which 1,927,500 shares are to be issued pursuant to the Company's Amended and Restated 1997 Stock Option and Incentive Plan, 575,000 shares are to be issued pursuant to the Company's 1999 Employee Stock Purchase Plan and 60,000 shares are to be issued pursuant to the Company's 1999 Director Option Plan (the "Plans"). We have acted as counsel to the Company in connection with the preparation and filing of this Registration Statement. In rendering this opinion we have examined such corporate records, documents and instruments of the Company and such certificates of public officials, have received such representations from officers of the Company, and have reviewed such questions of law as in our judgment are necessary, relevant or appropriate to enable us to render the opinion expressed below. In such examination, we have assumed the genuineness of all signatures, the authenticity of all corporate records, documents and instruments submitted to us as originals, the conformity to original documents of all documents submitted to us as conformed, certified or photostatic copies thereof, and the authenticity of the originals of such photostatic, certified or conformed copies. Based upon such examination and review and upon representations made to us by officers of the Company, we are of the opinion that upon issuance and delivery in accordance with the terms and conditions of the respective Plans, and upon receipt by the Company of the full consideration for the Shares as determined pursuant to the respective Plans, the Shares will be legally issued, fully paid and nonassessable shares of common stock, $.001 par value per share, of the Company. This firm consents to the filing of this opinion as an exhibit to this Registration Statement. In giving such consent, we do not admit that we come within the category of persons whose consent is required by Section 7 of the Act or the rules and regulations of the Commission thereunder. Respectfully submitted, /s/ Baker & McKenzie EX-23.2 3 a2050939zex-23_2.txt EXHIBIT 23.2 Exhibit 23.2 CONSENT OF KPMG LLP The Board of Directors SERENA Software, Inc. We consent to the incorporation by reference in this registration statement on Form S-8 of SERENA Software, Inc. of our reports dated February 13, 2001, with respect to the consolidated balance sheets of SERENA Software, Inc. and subsidiaries as of January 31, 2001 and 2000, and the related consolidated statements of income and comprehensive income, stockholders' equity, and cash flows for each of the years in the three-year period ended January 31, 2001, and related financial statement schedule which reports appear in the January 31, 2001, annual report on Form 10-K of SERENA Software, Inc. /s/ KPMG LLP San Francisco, California June 1, 2001 -----END PRIVACY-ENHANCED MESSAGE-----